R v David Richards

In an Attorney General reference, a sentence is unduly lenient only if it falls outside the range that a reasonable sentencing judge, applying all relevant factors, could consider appropriate. Under the Sentencing Code, the court must select the culpability category that most resembles the case, but may balance lesser culpability features by adjusting the starting point. It need not remain within the category range. Although immediate custody will ordinarily be required for wounding with a weapon and intent to cause really serious harm, unusual circumstances and strong personal mitigation may justify suspension. A sentencing decision that is insufficiently explained may nevertheless stand where the appellate court can identify the judge’s findings and the weight given to relevant factors.

David Richards was convicted at the Crown Court at Croydon of wounding with intent to do grievous bodily harm. He was sentenced to 24 months’ imprisonment, suspended for two years, with unpaid work, rehabilitation activity and a restraining order.

The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The reference concerned the categorisation of culpability and harm, the treatment of self-defence and personal mitigation, and whether the sentence should have been served immediately. The central issue was whether the sentence fell outside the range reasonably open to a sentencing judge.

1. Leave and governing test. The court refused leave to refer the sentence. Applying Attorney General Reference No 4 of 1989 [1991] WLR 41, a sentence is unduly lenient only where it falls outside the range of sentences which a judge, applying his or her mind to all relevant factors, could reasonably consider appropriate.
2. Guideline categorisation. Sections 59 and 60 of the Sentencing Code require relevant guidelines to be followed unless the interests of justice require otherwise. The court must choose the seriousness category that most resembles the case to identify the starting point, but section 60(4) imposes no separate duty to impose a sentence within the category range. The use of a weapon was the clearest indication of culpability and justified category B. The lesser-culpability characteristics could be balanced under the statutory scheme and the offence-specific guideline, allowing the starting point to be adjusted downwards.
3. Mitigation and sentence length. A sentence of three years before aggravating and mitigating features were considered was reasonable. The only aggravating factor was that the offence was committed while the offender was on bail. His lack of recent convictions, positive character, delay, absence of further offending and positive pre-sentence report provided substantial mitigation. A reduction of 12 months was not unreasonable, so the judge was entitled to impose two years’ imprisonment.
4. Suspension. The court accepted that weapon use coupled with intent to cause really serious harm will ordinarily require immediate custody. However, this was an unusual case involving unusual circumstances and an unusual offender. Strong personal mitigation was relevant under the Imposition Guideline, and it was open to the judge to conclude that immediate custody was unnecessary to achieve appropriate punishment. The judge’s failure to refer expressly to that guideline did not invalidate the sentence because the appellate court could identify her findings and the weight given to the relevant factors.
5. The sentence was lenient but remained within the range open to a reasonable judge. It was therefore not unduly lenient.

1. Court of Appeal (Criminal Division): On the Attorney General’s reference, the court refused leave to refer the sentence as unduly lenient under Criminal Justice Act 1988, section 36.
2. Crown Court at Croydon: Convicted the offender of wounding with intent to do grievous bodily harm and imposed 24 months’ imprisonment, suspended for two years, with additional requirements and a restraining order.